Latest in Extraterritoriality
Extraterritoriality
The "NSA Affair" Goes Criminal in Germany
The "NSA Affair" still commands German headlines. Over the weekend, the news was dominated by the fit-for-a-spy-novel revelations that the top floor of the U.S. Embassy on Pariser Platz (overlooking the Brandenburger Tor and the Reichstag) apparently housed equipment and officials that listened in on Chancellor Merkel’s calls. There is a great picture here. It all seems so 20th Century.
Extraterritoriality
The D.C. Circuit and the Guantánamo Detainees' Right of Access to Counsel
In describing Hatim v. Obama (the D.C. Circuit Guantánamo appeal in which the government filed its opening brief on Friday) as the "counsel access" case, Raff has hit the nail on the head.
Executive Power
Defriending FISA: A Response to Carrie Cordero
The central theme of Carrie's post critiquing proposals for FISA reform appears to be that there are already too many lawyers and too much oversight of how the NSA conducts "foreign intelligence surveillance," and so any proposals to increase these accountability mechanisms by appointing some kind of "special advocate" are necessarily myopic insofar as they (1) are not likely to accomplish all that much vis-a-vis the status quo; and (2) fail to appreciate that we already have "the most oversight-laden foreign intelligence activ
Civil Liberties and Constitutional Rights
My Last Word on the New Bahlul Amicus
Thanks to his "sur-reply", I finally understand the premise of Peter Margulies’s argument—and his amicus brief—in al Bahlul with regard to why the en banc D.C. Circuit can affirm Bahlul’s conspiracy conviction even though conspiracy is not a war crime under international law: Because Bahlul was actually tried for murder, even though no one in the courtroom—not the defendant, his counsel, the judge, the prosecutor, or, you know, the jury—knew it.
Civil Liberties and Constitutional Rights
Three Questions for Peter Margulies on the New Bahlul Amicus Brief
There's a lot to say about Peter Margulies' reply to my and Kevin Heller's criticisms of the "former government officials'" amicus brief in al Bahlul--the military commission appeal currently pending before the en banc D.C.
Terrorism Trials & Investigations
Mixed Feelings on the NSA . . .
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Civil Liberties and Constitutional Rights
A Response to Steve Vladeck and Kevin Jon Heller
In recent posts both on Lawfare and at Opinio Juris, Steve and Kevin Jon Heller (here and here) sharply critiqued the brief that Jim Schoettler and I filed on Thursday for Former
Guantanamo: Litigation: D.C. Circuit
The Two Fundamental Flaws in the New Bahlul Amicus Brief
Raff already flagged yesterday's filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by "former government officials, former military lawyers, and scholars of national security law," a group that includes Ben, Ken, and two of my casebook co-authors--among others.
Extraterritoriality
Justice Thomas and the Feres Doctrine
Understandably lost in this week's Supreme Court news was a somewhat surprising--and, in my view, welcome--dissent by Justice Thomas from the denial of certiorari in Lanus ex rel. Lanus v. United States. In his two-page dissent, Justice Thomas suggests that the Court should have granted cert.